Don’t Miss It: THE 2018 DMEC FMLA/ADA EMPLOYER COMPLIANCE CONFERENCE

Posted on: April 24, 2018 0

Join your peers and prepare to confidently tackle your organization’s FMLA/ADA challenges at the 2018 DMEC FMLA/ADA Employer Compliance Conference, Apr. 30-May 3, in Orlando!

This year, Matrix Absence Management is a National Sponsor and I have the privilege of facilitating four sessions! I would love for you to join me and my colleagues at any or all of the below:

Monday, April 30 12:00 pm -2:00 pm
Liability Alert! HR and Supervisor Ethical Missteps:

This session will highlight real ADA and FMLA cases to help you gain a deeper understanding of ethical pitfalls in managing leaves and disabilities, such as misplaced benevolence, relying on stereotypes, what you ask, and how you communicate. Throughout, you will learn best practices to promote ethical ideals.  Join Marti Cardi, Vice President, Product Compliance, Matrix Absence Management, Inc. and Jaclyn Kugell, Partner, Morgan, Brown and Joy, LLP

Monday, April 30 4:30 pm -5:30 Preconference Wrap-Up: Ask the Experts!

Join me and other presenters  as we wrap up the first day of sessions with a chance to ask questions of our experts on the topics covered during the afternoon preconference workshops.

Wednesday, May 2 9:00 am -10:00 am
DOL Red Flags in FMLA Investigations:

Helen Applewhaite, DOL Branch Chief for FMLA will headline in this sessionto help you to identify red flags that could reveal issues with your practices and policies.  I will bring in the practical advice on how you can proactively address these issues to stay in the clear and – occasionally perhaps – will disagree with Ms. Applewhaite and the DOL.

Wednesday, May 2 4:15 pm-5:15 pm
Roundtable Mental Health in the Workplace – The Do’s, Don’ts, and Shoulds:

Join your peers for a small-group discussion and  bring your questions about how to manage mental-health claims in the workplace under the ADA and FMLA:  performance and conduct issues, obtaining medical information, requiring counseling as a condition of continued employment . . .


These sessions with be equally engaging and enlightening, and offer true real-world examples you can put into practice (with the help of Matrix Absence Management, of course).  I hope you decide to join us but if not, stay tuned for my recap of the conference.

To learn more about the 2018 DMEC FMLA/ADA Employer Compliance Conference and to download the full program click here:  http://dmec.org/conferences-and-events/compliance-conference/.   

High Points in Recent FMLA Case Law

Posted on: May 11, 2017 1

By Marti Cardi, VP-Product Compliance

 

Last week I had the distinct pleasure of co-presenting one of the opening general sessions at the Disability Management Employer Coalition Compliance Conference with my buddy and fellow blogger, Jeff Nowak. Those of you who know Jeff and me will understand sharing the stage with him is tough duty: He’s cuter, funnier, and a better singer than me! Nonetheless, I soldiered through and together we provided updates on key FMLA cases decided by the courts in the past 12 months or so. Although there were no headline-making court decisions (think Escriba v. Foster Poultry Farms from a couple of years ago) there is still plenty to learn, and important reminders to gain, from recent FMLA cases. Here are some highlights:

Year of the Third Party Administrator. (Jeff’s title, not mine.) The past few months brought us a spate of cases dealing with an employer’s ability to require employees to provide notice of FMLA leave to both the employer and the employer’s third party administrator. For example, you can require your employees to call one number to report the absence for operational and attendance purposes, and another number (like Matrix!) to comply with and benefit from FMLA processes and protections. The key is to ensure that your employees are aware of the required two-notice process.

What employers should do: Enact a policy and distribute it to your employees spelling out the two-notice requirement, providing both numbers, and – while you’re at it – include time limits within which employees must report to each number. Some of the cases: Scales v. FedEx Ground Package Sys. (N.D. Ill. Jan. 2017); Alexander v. Kellogg USA, Inc. (6th Cir. Jan. 2017); Perry v. American Red Cross (6th Cir. 2016)

Employer’s duty to inquire for more information. The FMLA regulations provide that if an employer is on notice of an employee’s possible need for FMLA leave, the employer has the duty to ask for further information if needed to determine whether the employee’s leave request is for an FMLA-qualifying reason. 29 C.F.R. § 825.3(c); 825.303(b). This rule came up in two different contexts in recent cases.

In Reeder v. County of Wayne (E.D.Mich. Apr. 2016), employee Yasin provided a doctor’s note that identified his health conditions, stated he was under treatment, and directed that he should not work more than 8 hours per day – and thus no overtime (which was frequently required to ensure security at the county jail where he worked). The County did not provide Yasin with an FMLA certification form or a notice of rights and responsibilities. After missing many overtime shifts and receiving discipline, Yasin was terminated. The court ruled that a jury could find the information in the doctor’s note sufficient to put the County on notice that Yasin might need FMLA leave, thus giving rise to the County’s duty to inquire further if it needed more information.

EPILOGUE: The case indeed went to a jury that found the County had interfered with Yasin’s FMLA rights. He won over $187,000 in damages, $125,000 in attorneys’ fees, interest, and costs for a total in excess of $325,000.

Coutard v. Municipal Credit Union (2d Cir. Feb. 2017) reinforces the employer’s duty to inquire but this time in a situation that might surprise employers. Frantz Courtard asked for a leave of absence to care for his grandfather. MCU summarily denied the leave request, stating that the FMLA does not cover leave for grandfathers. Frantz took time off anyway due to his grandfather’s need for home care following hospitalization. Frantz was terminated for unexcused absences. Turns out, Frantz‘s grandfather had cared for him from age 4 when Frantz’s father died to age 14, providing a home, food, clothing, schooling, and other support typical of a parent – in short, a classic in loco parentis relationship. MCU argued that Frantz should have volunteered the information to establish the in loco parentis relationship. The court disagreed, holding instead that MCU had a duty to inquire whether Frantz’s grandfather qualified as ILP. Thus, Frantz’s termination constituted interference with his FMLA rights.

What employers should do: Always follow up with an employee if he or she provides information that a leave request might qualify under the FMLA, depending on additional facts. The regulations clearly state that merely “calling in sick” is not enough, but beyond that (and maybe even in that situation, depending on other facts) you should ask informally for more information to assess whether you should initiate the FMLA notice certification process. You will still be able to deny FMLA protections if the certification does not support the leave under the FMLA.

Beware the FMLA mandatory overtime rules! They can get you coming and going, as tire maker Bridgestone learned. Under Bridgestone’s overtime process, workers were not required to sign up for overtime, but if an employee did sign up and was selected for an OT shift, the employee had to work the assigned shift or be assessed an attendance violation. Employee Lucas was approved for intermittent leave to care for his son, who had asthma. Over time Lucas missed many OT shifts he had signed up for. Bridgestone applied FMLA to excuse most of the missed shifts, but ultimately Lucas exhausted his FMLA and was terminated for attendance violations.

The questions before the court included whether the OT shifts were mandatory, and whether Bridgestone had properly accounted for those shifts under the FMLA. Lucas argued the shifts were not mandatory because an employee could choose to sign up; as a result, they should not have been counted against his FMLA usage – and hence, he would not have exhausted his FMLA. Bridgestone countered that the shifts were mandatory once the employee signed up and was selected for a shift; as a result, Bridgestone argued, it was correct in deducting FMLA hours for the mandatory OT shifts Lucas missed to care for his son.

The court agreed that the shifts were mandatory due to Bridgestone’s OT sign-up, selection, and discipline process. But, Bridgestone had it only half right: The company was in compliance with the FMLA regulations when it deducted missed OT shifts from Lucas’s FMLA entitlement, but the company should also have included Lucas’s mandatory OT hours in its calculation of his “workweek” for FMLA purposes, using the variable workweek method permitted by the regulations. 29 C.F.R. § 825.205(b)(3). By failing to do so Bridgestone shorted Lucas on entitlement. Hernandez v. Bridgestone (8th Cir. Aug. 2016).

Lesson learned: Mandatory overtime counts toward both FMLA entitlement and FMLA usage.

Certification from a treating specialist? Maybe yes. Good news! A court has approved an employer’s request for an initial certification from a treating specialist. Erica was a difficult employee, to say the least. Her many complaints and ultimate termination landed her employer, City of Milford, in court. Lucky us! Erica’s groundless FMLA claims yielded a court ruling that is good news for employers. Erica was a community outreach employee for the City and requested FMLA leave for severe anxiety. She provided an FMLA certification from her primary care provider, who indicated that she was under treatment with a psychiatrist. The City asked for a new certification from the treating psychiatrist, which Erica provided. She received all the leave she requested but later – lots going on in the background, folks – she was fired. She sued and claimed, among many other things, that the City’s requirement that she provide a certification from her specialist was FMLA interference. Au contraire, said the court. Under these facts (a treating specialist referenced on the provider’s certification) the employer was justified in asking for a cert from that specialist.

But there are limits to how far we can rely upon this court decision. If the initial certification does not reference treatment by a specialist, a court may not be as willing to support an employer’s request for a certification from a specialist. After all, who would that specialist be if the employee is not treating? This is a reminder of the advantages of reviewing an employee’s initial certification carefully. The DOL prototype forms have questions to identify whether the employee/patient is receiving treatment from any other provider (WH-380-E and 380-F):

Was the patient referred to other health care provider(s) for evaluation or treatment (e.g., physical therapist)? ____No ____Yes. If so, state the nature of such treatments and expected duration of treatment: ___________________________________.

If the form is blank in this regard, follow the incomplete process spelled out in the regulations. If the form is filled in and indicates no other treatment, the second/third opinion process may be appropriate because the employee’s provider has given a certification on a specialty condition not within his/her practice. Either way, the employer ends up with more precise information about the employee’s need for leave – always a good thing!

The FMLA continues to be a challenge for employers – there seems to be no end to the fact situations employers face in managing employee leaves. If you have questions about the cases above other leave management issues, please contact us for help.

MATRIX CAN HELP!

Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.